Chief Inspector of Schools v Spicer

An appellate tribunal hearing an appeal against an urgent registration order may consider subsequent evidence and changes of circumstance when deciding whether the order should be confirmed, varied, or cease to have effect. It must exercise its own judgment, while giving substantial weight to the registration authority’s expertise and to the need for a person to demonstrate fitness before resuming regulated activity. A registration condition must be mandatory and sufficiently clear where breach is criminal. A condition subject to the registrant’s consent is unenforceable. A tribunal must also distinguish recommendations from conditions and should explain why important matters, such as required training, are left non-mandatory.

The Chief Inspector appealed against a Care Standards Tribunal decision allowing Yvonne Spicer’s appeal against cancellation of her childminder registration under Part XA of the Children Act 1989. The Tribunal accepted that the statutory ground for urgent cancellation had existed, but relied on subsequent admissions, assurances and proposed safeguards to reinstate registration subject to conditions and recommendations.

The appeal raised whether the Tribunal could consider post-order evidence, whether it had lawfully framed the conditions and recommendations, and whether its reasoning was adequate.

1. Subsequent evidence. The Tribunal’s jurisdiction on a true rehearing was not confined to facts existing when the justice of the peace made the urgent order under section 79K. Section 79M did not support that restriction. The statutory scheme, particularly the possibility of an order being made without notice, required the Tribunal to be able to consider subsequent facts, including facts relevant to whether the order should remain in force.
2. The Tribunal had to consider separately whether a child was suffering, or was likely to suffer, significant harm, and, if so, how the statutory power should be exercised. It could consider subsequent facts bearing on either question. It had to exercise its own judgment, but should give due regard to the Chief Inspector’s experience and powers. Where serious failures had been established, it should be cautious about accepting assurances which the Chief Inspector had no opportunity to monitor, and should give substantial weight to fitness being demonstrated before childminding resumed.
3. Defective decision. The Tribunal’s statement that a restriction provided an additional safeguard against reaching the limit of registration lacked sensible meaning. The condition restricting care of older children was expressed to depend on Mrs Spicer’s consent. A registration condition had to be mandatory and clear because failure to comply could constitute a criminal offence. The condition was therefore unenforceable or too unclear to be valid.
4. The recommendations were not conditions. However, recommendations concerning records, training and compliance with National Standards were framed in language resembling mandatory requirements. The Tribunal should explain why an important matter such as training was left as a recommendation and should avoid wording which could suggest that statutory or National Standards obligations were postponed or reduced.
5. Regulation 25 of the Tribunal Regulations did not provide an appropriate route for correcting these defects. The Tribunal’s decision was quashed and Mrs Spicer’s appeal was remitted to a differently constituted Tribunal. There was no order as to costs.

Care Standards Tribunal: On 24 September 2003, the Tribunal allowed Mrs Spicer’s appeal against cancellation of her registration, reinstated her registration subject to conditions and made recommendations.

High Court (Administrative Court): The Tribunal’s decision was quashed and the appeal was remitted to a differently constituted Tribunal. There was no order as to costs.